Johnson v. Scott et al

Filing 5

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED. [ECF No. 2 ] IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $37.42 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to Clerk, United States District Court, and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the re mittance is for an original proceeding. IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge E. Richard Webber on 3/9/2018. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SEAN MAURICE JOHNSON,
Plaintiff,
v.
DR. RICK SCOTT and ERIC BARNHART,
Defendants.

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No. 4:18-CV- 360 PLC

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Sean Maurice Johnson, an inmate at
Potosi Correctional Center, for leave to commence this action without payment of the required
filing fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient
funds to pay the entire filing fee and will assess an initial partial filing fee of $37.42. See 28
U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that the
complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is
required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or
her prison account to pay the entire fee, the Court must assess and, when funds exist, collect an
initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the
prisoner’s account, or (2) the average monthly balance in the prisoner’s account for the prior sixmonth period. After payment of the initial partial filing fee, the prisoner is required to make
monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s
account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these

monthly payments to the Clerk of Court each time the amount in the prisoner’s account exceeds
$10, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account statement
for the six-month period immediately preceding the submission of his complaint. A review of
plaintiff’s account indicates an average monthly deposit of $187.12. Plaintiff has insufficient
funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$37.42, which is 20 percent of plaintiff’s average monthly deposit.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma
pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief against a defendant who is immune from such relief. An action
is frivolous if “it lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S.
319, 328 (1989). An action is malicious when it is undertaken for the purpose of harassing
litigants and not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F.
Supp. 458, 461-63 (E.D.N.C. 1987), aff=d 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be granted,
the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the
complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950-51 (2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of
a cause of action [that are] supported by mere conclusory statements.” Id. at 1949. Second, the
Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 1950. The plaintiff is required to plead facts that show
more than the “mere possibility of misconduct.”

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Id.

The Court must review the factual

allegations in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id.
at 1951. When faced with alternative explanations for the alleged misconduct, the Court may
exercise its judgment in determining whether plaintiff’s proffered conclusion is the most
plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.
The Complaint
Plaintiff seeks monetary relief in this action for the violation of his constitutional rights
under 42 U.S.C. § 1983.

Plaintiff names as defendants Eric Barnhart, his attorney in an

underlying criminal matter from 2013, and Dr. Rick Scott. Dr. Rick Scott was retained by
defendant Barnhart to conduct a psychological evaluation of plaintiff to determine if he was
competent to stand trial on a charge of first degree assault. Plaintiff states that Dr. Scott was
required by a Missouri statute to file a written report of his psychological examination of
plaintiff, which he did not do. Plaintiff alleges a breach of duty and medical malpractice against
Dr. Scott. He also allege legal malpractice against Eric Barnhart for not filing a motion to rely
on the defense of mental disease or defect.
Discussion
Having carefully reviewed and liberally construed plaintiff’s allegations, the Court finds
that the complaint is largely duplicative of plaintiff’s complaint filed in Johnson v. Barnhart, No.
4:15-CV-286 CAS (E.D. Mo. filed Feb. 12, 2015) and, like his prior case, is legally frivolous as
to the defendants.
To state a claim under § 1983, a plaintiff must establish that a person acting under color
of state law committed the acts that form the basis of the complaint. See Parratt v. Taylor, 451
U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 328
(1986). The allegations against defendant Eric Barnhart for legal malpractice do not constitute
action under color of state law for purposes of § 1983. See Polk Cty. v. Dodson, 454 U.S. 312

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(1981) (actions of public defender performing traditional functions of attorney do not constitute
action under color of state law); Myers v. Vogal, 960 F.2d 750, 750 (8th Cir. 1992) (attorneys,
whether appointed or retained, who represented plaintiff in criminal proceedings did not act
under color of state law and were not subject to suit under § 1983); Harkins v. Eldredge, 505
F.3d 802, 803 (8th Cir. 1974) (conduct of counsel, either retained or appointed, in representing
client does not constitute action under color of state law). Similarly, plaintiff does not allege,
and there is no indication, that Dr. Rick Scott is a state actor for purposes of § 1983, and
therefore, this action will be dismissed under 28 U.S.C. § 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is
GRANTED. [ECF No. 2]
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $37.42
within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance
payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his
prison registration number; (3) the case number; and (4) that the remittance is for an original
proceeding.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 9th day of March, 2018.

E. RICHARD WEBBER
UNITED STATES DISTRICT JUDGE

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